But revised regulations may not be enough to end legal challenge

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WICHITA, Kan. — Kansas officials are easing contentious new regulations governing abortion clinics, but the move may not be enough to placate abortion providers who have already persuaded a federal judge to block earlier versions, The Associated Press has learned.

The AP obtained an advance copy of the new permanent rules that will take effect Nov. 14. A comparison with temporary versions of the rules shows Kansas Department of Health and Environment officials have removed some of the provisions that have been criticized during a public comment period and in a federal lawsuit.

The revised regulations no longer specify required patient room sizes and give clinics wider latitude to adjust a room's temperature. They also pare down the list of required medications and equipment doctors need to have on hand.

But the bulk of the original provisions remain, including rules that require abortion providers to have clinical privileges at a hospital within 30 miles of an abortion clinic and that require patient medical records to be available at the clinic for state health department officials to review.

Kansas Department of Health and Environment spokeswoman Miranda Steele said in an email that while the temporary regulations were reasonable based on industry standards, the public comment period served its purpose.

"KDHE took into account the suggestions and input received during the public comment period and made some changes to the regulations, but maintaining the same intent — to ensure the safety of patients," Steele said.

U.S. District Judge Carlos Murguia in July blocked the temporary regulations from taking effect after abortion providers said the rules would have forced the closure of two abortion clinics that would have had to make extensive building renovations in order to comply. Murguia has since ordered attorneys to submit briefs by Oct. 28 analyzing the similarities or differences between the permanent and temporary regulations.

Attorneys representing the two clinics — the Center for Women's Health in Overland Park and the Aid for Women clinic in Kansas City — indicated the changes would do little to end the legal fight.

"Although the regulations have changed in some ways, they remain unacceptable, imposing unnecessary and unreasonable requirements that will prevent physicians from providing the full range of reproductive health services to the women of Kansas, and running roughshod over patient confidentiality by giving the state broad access to private medical records," said Bonnie Scott Jones, an attorney with the New York-based Center for Reproductive Rights who represents the Overland Park clinic. "We are carefully evaluating the changes now, and we are considering all legal options."

Attorney Cheryl Pilate, who represents the Kansas City clinic, said they also are evaluating the permanent regulations and assessing their impact on clinic operations.

"At this point, we are keeping all of our legal options open and will take action as appropriate, in the near future," she said in an email.

The new clinic licensing regulations are part of a wave of new restrictions on abortion this year in Kansas, where abortion opponents have capitalized on the election of Republican Gov. Sam Brownback, an outspoken abortion opponent. Stricter licensing regulations were vetoed in 2003 and 2005 by then-Gov. Kathleen Sebelius, an abortion rights Democrat who is now U.S. health and human services secretary.

Planed Parenthood case
Meanwhile, a prosecutor said in a court record released Friday that Kansas' health department destroyed abortion records that were later sought as evidence in a criminal case against a Planned Parenthood clinic.

The statement was included in prosecutors' request to postpone a preliminary hearing scheduled for Monday in Johnson County District Court to determine whether the case would go to trial.

The clinic faces 107 charges, including 23 felonies that accuse it of falsifying abortion reports and misdemeanor charges of performing illegal late-term abortions. Its operator, Planned Parenthood of Kansas and Mid-Missouri, claimed in a response filed Friday that the records were shredded as part of "routine" document destruction and shouldn't be cause for a delay. The clinic, in the Kansas City suburb of Overland Park, has denied the allegations against it.

Chief Deputy Johnson County District Attorney Chris McMullin filed his request for the delay earlier this week, but the district court clerk's office wouldn't release a copy without approval from District Judge Stephen Tatum because documents in the case have been sealed. The Associated Press obtained a copy from Tatum's office Friday.

McMullin's request says the district attorney's office sought "a number" of reports filed by Planned Parenthood with the Kansas Department of Health and Environment on abortions performed in 2003. He said the department recently told his office that the reports, which were required by state law, had been destroyed in "approximately 2005."

Then-Attorney General Phill Kline, an anti-abortion Republican, was investigating abortion providers at that time, and his office had been trying to get information from patient medical records. Kline lost his bid for re-election in 2006 and then served as Johnson County district attorney from 2007 to 2009. He filed charges against the Planned Parenthood clinic in October 2007. The case has since been taken over by his successor, Republican District Attorney Steve Howe.

McMullin did not immediately return a telephone message seeking comment, but he's declined to discuss the case previously. A health department spokesman also did not return telephone messages left Friday. But Planned Parenthood's response said the health department had given it a copy of a memo sent to the district attorney's office, which said document shredding was done routinely.

Peter Brownlie, president and chief executive officer of the Planned Parenthood chapter operating the clinic, said the group hadn't asked for the records to be destroyed and also was surprised by the health department's announcement.

McMullin said in his request that the district attorney's office needs time to identify potential witnesses to testify about "secondary evidence."

But Planned Parenthood attorneys said in their response that the district attorney's office waited until September to subpoena the health department's reports on 23 abortions.

The charges of falsifying records involve copies of abortion records produced for a district judge in Shawnee County in August 2006. Kline claimed the documents didn't match copies given to the health department.

Planned Parenthood has said it didn't falsify records.

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